Prosecutors seek to thwart delay in U.S. Rep. William Jefferson's trial

WASHINGTON -- Federal prosecutors are asking a Virginia appeals court not to further delay U.S. Rep. William Jefferson's corruption trial, saying the government "should be afforded an opportunity to proceed with its prosecution" in a case first brought more than 18 months ago.

Prosecutor Mark Lytle said such a delay would result in "further prejudice" to the government's case against the nine-term New Orleans Democrat.

The brief, filed this week, came in response to a motion by Jefferson's attorneys asking the court to delay implementing its ruling that rejected their plea to throw out 14 of the 16 charges pending against the congressman. If the appellate court delays what is called the "issuance of a mandate, " the district judge presiding over the case could not schedule a trial.

The congressman's attorneys said the bribery-related charges against Jefferson are improper because the Virginia grand jury that indicted him heard testimony about his congressional activities in violation of the U.S. Constitution's speech or debate clause, which protects Congress from interference from the executive branch.

His attorneys, led by Washington attorney Robert Trout, said the trial, now likely in the first half of 2009, should be delayed while they pursue an appeal to the U.S. Supreme Court.

Lytle said the 4th Circuit Court of Appeals in Richmond, Va., should allow a trial to proceed on all 16 charges, even while Jefferson appeals to the nation's high court.

"In sum, this is not a close case: The defendant has not shown a reasonable probability of success on the merits of his (Supreme Court) petition, and, at trial, the District Court will scrupulously guard against any possible violations of the speech or debate clause, " the Justice Department said.

Jefferson's attorneys reject the Justice Department's argument that the congressman, who lost a bid for his 10th term in the Dec. 6 general election, would not be harmed by going to trial before the Supreme Court takes up their legal arguments.

"Once a trial takes place, the injury caused by exposure to trial cannot be undone, even if he is acquitted or a conviction is subsequently reversed, " the lawyers said.

Contrary to the arguments of prosecutors, Jefferson's attorneys said there have been appellate court rulings about the speech or debate clause that followed their arguments, producing a "reasonable probability" that the Supreme Court will agree to take up their appeal to resolve complicated legal issues.

The issue, the Jefferson brief said, is "whether a legislator (current or former) may be forced to stand trial at all on an indictment obtained in violation of the (speech or debate) clause."

District Court Judge T.S. Ellis III, in Alexandria, Va., has scheduled a status hearing on the case for Jan. 15, at which time he could set a date for the trial if freed to do so by the appellate court.

By then, Jefferson will be a former member of Congress, replaced by Vietnamese-American lawyer Anh "Joseph" Cao, a Republican, who scored the election upset Dec. 6.

Jefferson is accused of demanding, and in some cases receiving, money in return for helping businesses obtain contracts in western Africa. The money was funneled to businesses owned by family members, according to the charges against him.

Jefferson maintains his innocence.

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Bruce Alpert can be reached at bruce.alpert@newhouse.com or 202.383.7861.